The crime of making false information, K.S.A. 2001 Supp. 21-3711, requires that
the writing be done in the writer's own name, while forgery, K.S.A. 21-3710, is a writing which
purports to be that of another. In order to establish the crime of making false information, the
writing must not appear to have been produced by another, as that conduct is specifically
proscribed under the forgery statute.

Rick Kittel, assistant appellate defender, argued the cause, and Steven
R. Zinn, deputy appellate
defender, was with him on the brief for appellant.

Ian H. Taylor, assistant district attorney, argued the cause, and Nola
Foulston, district attorney, and
Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.: Story Gotti appeals his conviction following a bench trial of making
false information. Gotti argues he should have been charged with forgery. We agree and reverse
his conviction.

After a bench trial involving the testimony of two witnesses, the district court
convicted Gotti of one count of making false information. Ken Haley, a Dillard's store manager,
worked with Gotti in the men's department at the store. Haley testified he noticed irregular
transactions from the men's department register. Haley described the irregularity in two
transactions:

"Well, there were several things. The one transaction that was for four sweaters was voided
out and
then immediately following that, 2 minutes later, I believe it was the same sweaters were being
returned for a, what we call a merchandise only receipt."

Generally, a customer receives a merchandise only receipt when items are returned
without the original receipt. The customer receives credit with the merchandise only receipt with
which other store items can be purchased. The receipt indicates the issuing employee's
identification number in the top left corner.

In this case, the identification number on the merchandise only receipt belonged to
another Dillard's employee, Leslie Duncan. Upon interviewing Duncan, Haley determined
Duncan did not ring the transactions.

An audit copy of the receipt must be signed by the customer, show the customer's
address, and show the signature of the employee who initiated the transaction. In this case, the
audit copy purported to be signed by Duncan; however, Duncan did not initiate the transaction.
The customer on the audit copy purported to be Amy Bailey. Haley stated that the audit copy
was
used in exchange for other Dillard's merchandise.

Haley testified that when he interviewed Gotti regarding the transactions, Gotti
admitted he had made the transactions because he needed money. On cross-examination, Haley
described the transaction:

"The sweaters never left the store. The sweaters were taken off the floor, rung at
the register, put back on the floor. They never were purchased, they were never
taken out of the store. It was false information being rung through the register to
gain a merchandise only [receipt] for $600, to take that receipt and go somewhere
else and buy more merchandise."

Bradley Bryant, a Wichita police detective with the financial crimes section, testified that he
interviewed Gotti:

"I had been shown some receipts, and I asked Mr. Gotti if he had falsified any receipts for
Dillard's.
Mr. Gotti indicated that he had, that he needed money and that he had created a false sale and
return
and that he had given those receipts to his girlfriend to take to another Dillard's store where she
was
able to purchase TV, perfume and a cologne using those receipts, and he indicated that he had
done
that, those particular acts."

Bryant stated that Amy Bailey is Gotti's girlfriend. Gotti gave the merchandise only receipt to
Bailey.

Relying on State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990), Gotti argues
the
State improperly charged him with making false information under K.S.A. 2001 Supp. 21-3711,
instead of forgery under K.S.A. 21-3710. Resolution of this issue involves the interpretation of
statute, and the standard of review is, therefore, unlimited. See State v. Robinson,
261 Kan. 865,
874, 934 P.2d 38 (1997).

Making false information is defined in K.S.A. 2001 Supp. 21-3711:

"Making false information is making, generating, distributing or drawing, or
causing to be made, generated, distributed or drawn, any written instrument, electronic data or
entry
in a book of account with knowledge that such information falsely states or represents some
material
matter or is not what it purports to be, and with intent to defraud, obstruct the detection of a theft
or
felony offense or induce official action."

PIK Crim. 3d 59.13 contains the following relevant elements:

"To establish [making false information], each of the following claims must be
proved:

"1. That the defendant knowingly (made) (generated) (distributed) (drew) (caused
to be [made] [generated] [distributed] [drawn]) (a written instrument) (an electric
data) (an entry in a book of account);

"2. That the defendant knew that such information falsely stated or misrepresented
some material matter which was not what it purported to be;

"3. That the defendant intended to (defraud) (obstruct the detection of a [theft]
[___, a felony offense]) (induce official action)."

The State was required to prove Gotti (1) knowingly made a written instrument, (2)
that Gotti knew to be false, (3) with the intent to defraud or obstruct the detection of a felony.

Forgery is defined in K.S.A. 21-3710 as:

"(a) Forgery is knowingly and with intent to defraud:

"(1) Making, altering or endorsing any written instrument in such manner that it
purports to have been made, altered or endorsed by another person, either real or fictitious,
and if a
real person without the authority of such person; or altering any written instrument in such
manner
that it purports to have been made at another time or with different provisions without the
authority
of the maker thereof; or making, altering or endorsing any written instrument in such manner that
it
purports to have been made, altered or endorsed with the authority of one who did not give such
authority." (Emphasis added.)

PIK Crim. 3d 59.11 includes the following elements for forgery:

"To establish [forgery], each of the following claims must be proved:

"1. That the defendant knowingly made, altered or endorsed a ___ so it appeared
to have been (made) (endorsed) (by ___) (at another time) (with different provisions) (by the
authority of ___, who did not give such authority.

. . . .

"2. That the defendant did this act with the intent to defraud."

Thus, under the forgery statute, the State would have to prove that (1) Gotti made a
writing, (2) so it appeared to have been made by another, and (3) with the intent to defraud.

This court in Rios, another case involving Dillard's employees, reviewed two
defendants' convictions of making a false writing and of theft by deception. The Rios
court
quoted the statute in effect at the time, noting:

"'Making a false writing is making or drawing or causing to be made or drawn any
written instrument or entry in a book of account with knowledge that such writing falsely states or
represents some material matter or is not what it purports to be, and with intent to defraud or
induce
official action.'" 246 Kan. at 528.

The making of a false writing was based on the defendants having printed phony refund
vouchers
on a training register. The phony refund vouchers purported to be filled out at the request of a
Dillard's customer and signed by a customer seeking a refund of items previously purchased. The
defendants used these phony refund vouchers to satisfy the store accounting procedures for cash
or
merchandise they had taken from the store. On appeal, Rios considered whether the
defendants'
actions properly fell within the definition of making a false writing rather than a forgery.

Rios noted two problems with the application of the false writing statute to
the
defendants' actions: "The first problem concerns the nature of the instruments themselves. The
second concerns the intended and actual use of the instruments." 246 Kan. at 528. With regard
to
the first concern, the court cited prior case law involving the crime of making a false writing,
concluding that the prior cases involved a defendant having made a false statement regarding his
or
her own affairs. However, the convictions in Rios were based on the phony vouchers
purportedly
signed by Dillard's customers: "In short, the vouchers were forged instruments." 246 Kan. at
529. The court then quoted the forgery statute, K.S.A. 21-3710, and concluded as follows:

"Forgery is a class E felony. Making a false writing is a class D felony. Clearly,
the legislature intended that the conduct proscribed by K.S.A. 21- 3711 deserves a more severe
penalty than does the conduct proscribed by K.S.A. 21-3710. The State herein apparently
believes it
is free to elevate any forgery to the making of a false writing at whim as the latter statute includes
all
forgeries. We do not agree. The forgery statute specifically proscribed the making of an
instrument
which appears to have been made by another without that person's consent. Such other person
may
be real or fictitious. This is precisely what defendants are alleged to have done herein, and, hence,
the conduct cannot also constitute the making of a false writing contrary to K.S.A. 21-3711.
We
conclude that the conduct proscribed by K.S.A. 21-3711 does include conduct defined as forgery
under K.S.A. 21-3710." (Emphasis added.) 246 Kan. at 529-30.

With regard to the second concern, Rios noted that the defendants had only
been
charged under the making a false writing statute with the alternative specific intent of "with intent
to defraud." 246 Kan. at 528. The Rios court considered whether the defendants'
actions
amounted to an intent to defraud, finding there was no such intent with respect to the phony
refund
vouchers because the vouchers were used to cover up the crime which had already been
committed:

"Defendants did not obtain the money represented on each voucher because of the
voucher. Dillard's was not induced and was not intended to be induced to part with the money
shown on the voucher by presentation of the voucher. Dillard's had been deprived of the money
shown on the voucher before the voucher was processed by Dillard's. Each voucher was created
for
and used to cover up the theft of the money shown on its face. Intent to defraud requires that the
maker of the instrument intended to deceive another person and to induce such person, in reliance
upon the deception, to assume, create, transfer, alter, or terminate a right, obligation, or power
with
reference to property. The evidence herein does not satisfy this element." 246 Kan. at 530.

Rios considered the argument that the cover-up could be considered evidence of
an intent to
defraud because the defendants would be able to perpetuate their scheme in the future; however,
the court, considering the strict construction of criminal statutes, rejected this argument. In
conclusion, the court noted that the evidence was not sufficient to support the conviction of
making a false writing. 246 Kan. at 530-31.

The Rios court excluded acts constituting forgery from the definition of
making a
false information. The issue in this case is whether that exclusion is still valid in light of statutory
amendments to K.S.A. 21-3711.

We reverse Gotti's conviction based on the first of the two concerns addressed by
the court in Rios. K.S.A. 2001 Supp. 21-3711, with regard to the first concern,
requires that the
making of false information be done in the writer's own name. A forgery is a writing which
purports to be that of another. This case presents the same concern. The receipts purported to
have been initiated by another employee, Duncan. However, the evidence presented to the trial
court showed that the transaction was initiated by Gotti.

The State argues this present case is distinguishable from Rios in two
respects.
First, the State argues the statute defining the crime of making false information has been
amended, including a new specific intent alternative. K.S.A. 21-3711 was amended in 1992 and
1993 to conform to the sentencing guidelines. See L. 1992, ch. 239, § 109; L. 1993, ch.
291, §
71. In 1996, 21-3711 was amended to change the crime from "making a false writing" to
"making a false information" and to include electronic falsifications:

"Making, generating, distributing a false writinginformation is
making or drawing or causing to be made, generated, distributed or drawn any
written instrument electronic data or entry in a book of account with knowledge that
such writinginformation falsely states or represents some material
matter or is not
what it purports to be, and with intent to defraud or induce official action." L.
1996, ch. 157, §2.

In 1997, 21-3711 was amended to change the crime to "making false information" and to
include
the specific intent to "obstruct the detection of a theft or felony offense." L. 1997, ch. 66, §
1.

Over Gotti's objection, the prosecutor amended the complaint in this case to allege
Gotti made the false information "with the intent to obstruct the detection of a theft or felony
offense or induce official action." The record indicates the prosecutor may have done this after
Gotti's attorney raised the issue in Rios.

The facts of this case render the second concern in Rios inapplicable. The
facts in
Rios can be distinguished because the receipts in the present case were made with the
intent to
defraud, unlike the receipts in Rios. The defendants in Rios were stealing
money first and creating
the receipts in order to satisfy the accounting procedures; therefore, "Dillard's was not induced
and was not intended to be induced to part with the money shown on the voucher by presentation
of the voucher." 246 Kan. at 530. Both the present definitions of forgery and making false
information include the language "intent to defraud." See K.S.A. 2001 Supp. 21-3710; K.S.A.
2001 Supp. 21-3711.

In contrast, Gotti created the receipt to give to his girlfriend, who would later
present it in exchange for merchandise. The words "obstruct the detection of a theft or felony
offense" contained in both the amendment to K.S.A. 21-3711 and the amendment to the
complaint
in this case are not applicable because the receipts were created to induce Dillard's to part with
merchandise later upon presentment.

While the amendment to K.S.A. 21-3711 could have addressed the second concern
in Rios, as applied to the facts of that case, the amendment did not affect the court's
first concern
that forgery is the "making of an instrument which appears to have been made by another without
that person's consent," while making false information involves the perpetrator's "own business or
affairs." 246 Kan. at 529. The State admits Gotti "did not act in his own name when he created
the merchandise receipt for his girlfriend."

The State cites State v. Welsh, 26 Kan. App. 2d 362, 988 P.2d 261 (1999),
for the
proposition that Gotti's conviction be affirmed because he aided and abetted his girlfriend. Under
this theory, Gotti's culpability derives from the actions of Bailey, who acted in her own name.
Thus, Gotti, under an aiding and abetting theory, falls within the definition of making false
information under K.S.A. 2001 Supp. 21-3711. The defendant in Welsh cited
Rios, arguing that
"in order to be convicted of making a false writing, an individual must be acting within his or her
own identity." The Welch court rejected the argument because "Welsh aided and
abetted Shuey in
the making of the false writing." 26 Kan. App. 2d at 363. Welsh was convicted by a jury that
had been instructed on an aiding and abetting theory. Thus, Welsh can be
distinguished because
the State never proceeded on an aiding and abetting theory in this case.

We reverse Gotti's conviction because he was improperly charged and convicted of
the crime of making false information. We need not address Gotti's other arguments.